Mosley and Alban - [2016] FamCA 34

FAMILY COURT OF AUSTRALIA

MOSLEY & ALBAN

[2016] FamCA 34

FAMILY LAW – Non-compliance – costs.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Mosley

RESPONDENT:

Ms Alban

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

1463

2011

DATE DELIVERED:

22 January 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

22 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams

SOLICITOR FOR THE APPLICANT:

Coote Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Robertson

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE
INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE
INDEPENDENT CHILDREN’S LAWYER

Resolve Conflict Collaborative Law & Mediation

Ms Agresta

Victoria Legal Aid

Orders

In respect of the orders made on 11 December 2015, the following alterations shall apply:
(a) Paragraphs 4 and 5 are discharged;
(b) Paragraphs 8 and 10 are discharged;
(c) The time in paragraph 2(a) is extended to 29 January 2016.
That the respondent mother pay the applicant father’s costs fixed in the sum of $900 but there be a stay in respect of the payment of that for a period of four weeks from the date of this order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mosley & Alban has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1463 of 2011

Mr Mosley

Applicant

And

Ms Alban

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

This matter was listed this morning at the request of the Court because of the failure of the respondent to comply with an order made by Bennett J on 11 December in respect of the filing of her trial material. Notwithstanding she was the respondent, she was to file first because, I presume, her Honour concluded that, as the mother was proposing the children relocate internationally, she should file first.
The mother filed her material on 20 January through the Court’s portal notwithstanding that she was obliged to file by 8 January. Filing on the Court’s portal does nothing to overcome the problem in the Rules that, if a party is obliged to comply with a timetable and fails to do so, the filing is a nullity.
No one really objects to the filing of that material, because the reality is, from the applicant father’s point of view, he has some difficulties with the time he is permitted with the children and he wants the case heard.
After much discussion, it seems common ground from the respondent’s point of view, and also from the independent children’s lawyer’s perspective, that the late filed evidence of the mother hardly supports an order for an international relocation. Despite that, initially, the respondent wished to proceed. After discussion, it now seems that she does not want to proceed within the timeframe originally anticipated by Bennett J.
The positions have materialised as follows: the mother is to have the matter adjourned for one or two months to address the evidentiary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mosley and Alban

Details

AGLC: Mosley and Alban [2016] FamCA 34
Case: [2016] FamCA 34
Decision Date: 22 January 2016

CaseChat Overview and Summary

In the matter of *Mosley and Alban*, heard before Cronin J, the dispute concerned alterations to existing orders made on 11 December 2015. The specific nature of the underlying dispute is not detailed, but the application sought modifications to those prior orders.

The court was required to determine whether to discharge certain paragraphs of the existing orders, specifically paragraphs 4, 5, 8, and 10. Additionally, the court had to consider an application to extend a time limit stipulated in paragraph 2(a) of the previous orders. The court also had to determine the appropriate costs order and whether to grant a stay on any awarded costs.

Cronin J ordered the discharge of paragraphs 4, 5, 8, and 10 of the orders made on 11 December 2015. The time for compliance with paragraph 2(a) was extended to 29 January 2016. The respondent mother was ordered to pay the applicant father’s costs, fixed at $900, with a stay on payment for four weeks from the date of the order.

Orders

Orders of the court

In respect of the orders made on 11 December 2015, the following alterations shall apply:

(a) Paragraphs 4 and 5 are discharged;

(b) Paragraphs 8 and 10 are discharged;

That the respondent mother pay the applicant father’s costs fixed in the sum of $900 but there be a stay in respect of the payment of that for a period of four weeks from the date of this order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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